DocketNumber： 050100598; A136633; 050100598; A139232
Citation Numbers： 254 Or. App. 115, 296 P.3d 529
Judges： Armstrong, Duncan, Haselton
Filed Date： 12/19/2012
Status： Precedential
Modified Date： 7/24/2022
This appeal arises from a jury verdict in favor of Maureena Schmaing on her counterclaim for wrongful discharge against her employers, Daniel G. Koller, D.V.M., dba Companion Pet Clinic, NE 82nd Ave. (Koller), and Companion Pet Clinic of NE Portland, LLC (Pet Clinic).
A. The parties’ relationship, pleadings, and trial
From February 2002 to June 2, 2004, Schmaing worked as a .receptionist at Pet Clinic, which Roller owned and operated as a practicing licensed veterinarian. Schmaing’s duties generally consisted of administrative tasks such as answering phones, greeting clients, and managing client information. While she was working at Pet Clinic, Schmaing obtained services, medications, and pet food from the clinic. During the second year of her employment, Schmaing witnessed Roller treat animals in a manner that she believed was abusive and unprofessional. According to Schmaing, Roller would sometimes get frustrated and become violent, angry, and threatening toward an animal that he was treating.
Eventually, Schmaing decided to report Roller to the proper authorities. To that end, on May 3,2004, accompanied by Miller, a former Pet Clinic employee, Schmaing met with an attorney, Burns. Burns agreed to assist Schmaing in preparing a complaint against Roller to submit to the Oregon State Veterinary Medical Examining Board (veterinary board), which is responsible for investigating complaints against veterinarians “alleged to be practicing in violation of law.” ORS 676.160(19); ORS 676.165(1).
Later that month, Miller informed Roller about the meeting with Burns and Schmaing’s assertions that Roller had been “conducting [himself] in an unprofessional and unethical manner” and that he had “euthanized an animal without the client’s consent.” On May 27, 2004, Roller confronted Schmaing about the meeting and the negative remarks that Miller had attributed to her. Schmaing responded that she “didn’t really know what he was talking about.” Roller then told Schmaing that he believed that Miller was “blackmailing him” and that Roller intended to create a document that Schmaing would need to sign.
“9. I have never met nor provided client records from Companion Pet Clinic, NE 82d Ave. to a Ms. Susan Ford Burns, an Oregon attorney.
“10. I have never taken Gary Miller to Ms. Burns’ office in my life.
“11. To my knowledge and belief Dr. Roller has never euthanized an animal without the client’s consent.
“12. Gary Miller contacted me after his discharge and wanted me to participate in his plans to ‘get Roller’s license.’ I declined because I have not seen Dr. Roller conduct himself in an unethical or unprofessional manner.
«Hí Hi & Hi ❖
“I declare under penalty of perjury, under the laws of the State of Oregon that the foregoing is true and correct to the best of my recollection.”
(Capitalization and underscoring in original.)
Schmaing told Roller that she did not have time to sign the declaration, but that she would take it home and “look it over” — which Schmaing did — but she did not sign it. On June 2, 2004, Schmaing returned to work, and Roller insisted that she sign the declaration. Schmaing refused because, among other things, the statements quoted directly above were false and, with respect to declaration number 12, Schmaing informed Roller that she had, in fact, “seen him conduct himself in an unprofessional and unethical manner.” Roller again instructed Schmaing to sign the declaration, and, when she refused, he immediately fired her.
In July 2004, Schmaing submitted a complaint against Roller to the veterinary board.
As noted in the opening paragraph of this opinion, one of the critical issues presented for our review pertains to Roller’s asserted entitlement to represent himself. On the first day of trial, August 17, 2006, at a hearing on the parties’ respective in limine motions, Roller informed the court during the following exchange that he intended to represent himself:
“DR. ROLLER: I am going to be my own attorney—
“THE COURT: Dr. Roller, you’re not going to be your own attorney. The entity that is named here is Companion Pet Clinic. Dr. Roller doing business as Companion Pet Clinic, the Oregon statutes do not allow you to represent yourself in the capacity of Companion Pet Clinic.
“DR. ROLLER: And that’s true.
“THE COURT: That’s right.
“DR. ROLLER: But I’m Daniel Roller being sued by them and I can represent myself, Your Honor. I’m sorry—
“THE COURT: Would you like to brief that matter—
“DR. ROLLER: —that’s been in the constitution.
“THE COURT: —for the Court?
“DR. ROLLER: I don’t need a brief. It’s constitutional. And I’ll brief it, and it’ll be no problem, by tomorrow you’ll have a brief on it. Don’t you deny me my right to defend myself. They’re suing me. And you are denying me my right to defend myself * * *.”
Roller never filed the promised brief,
“DR. ROLLER: Your Honor, I’m discharging my attorney.
“THE COURT: Then you have no one to represent you.
I’m not going to allow you to do that.
“DR. ROLLER: Yes, I — you’re not allowing me to represent myself? Are you saying that?
“THE COURT: We went over that at the beginning of trial, Dr. Roller. You’re not qualified in this state to represent Companion Pet Clinic—
“DR. ROLLER: That’s correct.
“THE COURT: —82nd Street, LLC.
“DR. ROLLER: That’s correct. I said that if you read the pleadings—
“THE COURT: It does say, [‘]Dr. Roller doing business as Companion Pet Clinicf]; that’s an issue that came up at the beginning of the trial.
“DR. ROLLER: No, no, no. They’re suing separately. The — [Ms. Roller is] representing the LLC.
“THE COURT: Dr. Roller, you are excused until noon.
“DR. ROLLER: No, Your Honor, this is — you have it wrong. I can represent myself as an individual. And the LLC has to be represented by a licensed attorney in the State of Oregon. As an individual, and I am being sued as an individual, I have a right to represent myself.
“THE COURT: Dr. Roller, please step outside.
“DR. ROLLER: Well, Your Honor, I move for a mistrial if I’m not present during my defense. That’s it.”
The court excluded Roller from the courtroom, and Ms. Roller continued her cross-examination.
“THE COURT: *** I want to make clear, Ms. Roller, that you need to control your client. Your client is not the lawyer trying the case. You are.
“MS. ROLLER: I understand that, Your Honor.”
Ms. Roller continued to jointly represent Roller and Pet Clinic for the remaining three days of the trial until its conclusion on September 1, 2006.
B. Judgment and subsequent developments
As noted, the threshold issue in this appeal pertains to identifying the proper object of our review. Because the trial court entered several successive judgments, including “corrected judgments,” it is essential to recount that procedural sequence in inescapably arcane detail.
At the conclusion of trial, a special verdict form was submitted to the jury. That form bore the caption “Daniel G. Roller, DVM, dba, Companion Pet Clinic NE 82nd Ave[,] Plaintiff” — that is Roller, individually — “v. Maureena Schmaing, Defendant.” It inexplicably did not refer to Pet Clinic as a counterclaim defendant. The jury returned a verdict for “plaintiff” — that is Roller, individually — on his claims for conversion and shoplifting, with damages and penalties totaling $1,026. The jury also returned a verdict in favor of “defendant” (Schmaing) on her counterclaim for wrongful discharge, with damages of $64,360.
In response to Schmaing’s objection to that omission, the trial court, in a letter to counsel, explained that Schmaing had failed to (1) “fil[e] a motion to join Dr. Roller individually as a party to the lawsuit” and (2) “serv[e] Dr. Roller in his individual capacity with a Summons and Counterclaims.” Consequently, the court determined that Roller was not a party to the lawsuit. The court added that
“[t]he ruling denying Dr. Roller to proceed pro se by this Court was premised on the fact that only Companion Pet Clinic, NE 82nd Ave., and Companion Pet Clinic of NE Portland, LLC were parties in the case. Had Dr. Roller been individually joined as a party, the Court’s decision would have been different.”9
On June 18, 2007, Pet Clinic filed a combined motion for judgment notwithstanding the verdict and an alternative motion for a new trial. That motion was deemed denied on July 31, 2007. On August 24, 2007, Pet Clinic filed a notice of appeal from the general judgment entered on June 6, 2007 (original general judgment).
Meanwhile, on August 27 — that is, three days after Pet Clinic had filed its appeal from the original general judgment — the trial court filed a “corrected general
On September 26, 2007, Koller and Pet Clinic filed a notice of appeal and an amended notice of appeal, respectively, from those modified judgments. Schmaing also filed an amended notice of cross-appeal from those modified judgments.
On October 31, 2007, Pet Clinic and Koller filed a joint motion for a summary determination of appealability. This court determined that the trial court lacked jurisdiction to enter both the first and second corrected judgments under ORCP 71 A, because the modification in both of those judgments — viz., to add Koller as a judgment debtor on the wrongful discharge counterclaim — was substantive, rather than merely a correction of a “clerical mistake.”
In April 2008 — with the appeal from the original judgment still pending — Schmaing filed a motion for relief from the original judgment, pursuant to ORCP 71 B(l) and ORCP 71 C. Koller opposed those motions. The trial court granted Schmaing’s ORCP 71 C motion and ordered that Koller be included as a judgment debtor in the judgment in Schmaing’s favor for wrongful discharge. The court determined that, notwithstanding the pendency of the appeal, ORCP 71 C
By way of further explanation of its allowance of relief under ORCP 71 C, the trial court stated that it had “mistakenly omitted Koller from that portion of the judgment resolving Schmaing’s counterclaims” because it had “overlooked” Schmaing’s proof of service of her responsive pleading, including the wrongful discharge counterclaim, on Koller. In addition, after expressing its “concern” that its denial of Koller’s request to proceed pro se could result in a remand for a new trial, because the expressed basis of that denial — viz., that Koller individually was not a party to the litigation — was inaccurate, the court posited additional rationales for, and justifications of, that ruling. In particular, the court asserted that “Koller’s demeanor in the courtroom * * * suggested that his participation in the role of counsel could be disruptive to the proceedings,” and that
“Ms. Koller represented the plaintiff and both counterclaim defendants throughout the trial. The interests of the two counterclaim defendants were aligned for all purposes with respect to all claims, defenses and counterclaims. Koller assisted in the defense of Schmaing’s counterclaims and in the prosecution of his theft claim against Schmaing by providing questions to his counsel for direct and cross examination of witnesses and by suggesting factual and legal arguments to her during the proceedings. From time to time, the court also allowed Koller to address the court directly. Koller’s counsel, Ms. Koller, more than adequately protected the interests of both of her clients throughout the trial. A complete review of the trial record shows that Koller was not prejudiced by the court’s order denying his motion to represent his own interests and to defend his professional reputation.”
II. ANALYSIS
Notwithstanding its procedurally contorted posture, the disposition of this appeal depends on the resolution of four interrelated questions: First, did the trial court lack jurisdiction to enter the third corrected judgment naming Koller as a judgment debtor? Second, if so, did the court err in failing to name Koller as a judgment debtor in the original judgment? Third, did the court err in denying Pet Clinic and Koller’s motion for directed verdict against the wrongful discharge counterclaim? Fourth, if the court did not err in denying the motion for a directed verdict, is Koller nevertheless entitled to a new trial as to the wrongful discharge counterclaim against him individually because the trial court erroneously precluded him from representing himself?
In particular, Koller and Pet Clinic jointly contend that the trial court erred in granting Schmaing’s ORCP 71 C motion, and, consequently, entering the third corrected general judgment, because the trial court lacked jurisdiction to substantively modify the original judgment while an appeal from that judgment was pending. They further jointly contend that the court erred in failing to grant a directed verdict against Schmaing’s wrongful discharge claim, because Schmaing’s actions did not involve an “important public duty.” Finally, in addition to those joint contentions, Koller asserts individually that the court erred in precluding him from representing himself after he expressed his determination to discharge his counsel.
Schmaing remonstrates that Koller is properly a judgment debtor on the wrongful discharge counterclaim either because the trial court correctly entered the third corrected judgment so naming him
As amplified below, we first conclude that the trial court lacked “inherent authority” under ORCP 71 C to enter the third corrected judgment while the appeal from the original judgment was pending before this court. Accordingly, we vacate the third “corrected general judgment” and address the challenges pertaining to the original general judgment. With respect to the original judgment, we conclude that: (1) The trial court erred in failing to designate Roller as a judgment debtor on Schmaing’s wrongful discharge counterclaim. (2) The trial court did not err in denying the motion for a directed verdict on Schmaing’s wrongful discharge counterclaim, because good faith reporting of professional misconduct is an “important public duty.” And (3) the trial court’s denial of Roller’s requests to discharge his attorney and proceed pro se was not reversible error because, regardless of whether the court erred, Roller has failed to identify any cognizable prejudice with respect to the defense of the counterclaim warranting reversal.
A. Roller’s status as judgment debtor
We begin with the propriety of the third corrected general judgment because that is, legally and practically, the necessary point of departure. Once entered, that judgment remains the “statement of the court’s decision in the case and governs the rights and obligations of the parties that are subject to the judgment” unless and until it is set aside. ORS 18.082.
ORS 19.270 provides, in part:
“(1) The Supreme Court or the Court of Appeals has jurisdiction of the cause when the notice of appeal has been served and filed as provided in ORS 19.240, 19.250 and 19.255. The trial court may exercise those powers in connection with the appeal as are conferred by law, and retains jurisdiction in the matter for the following purposes:
“(a) Deciding requests for attorney fees, costs and disbursements or expenses pursuant to ORCP 68 or other provision of law.
“(b) Enforcing the judgment, subject to any stay of the judgment.
“(c) Deciding a motion for judgment notwithstanding the verdict under ORCP 63.
“(d) Deciding a motion for new trial under ORCP 64.
“(e) Deciding a motion for relief from judgment under ORCP 71 B.
^ ^
“(5) Notwithstanding the filing of a notice of appeal, the trial court has jurisdiction:
“(a) To enter an order or supplemental judgment under ORCP71U”
(Emphases added.)
Within the “retained” jurisdiction described in ORS 19.270, ORCP 71, in turn, narrowly circumscribes a trial court’s jurisdiction to vacate or correct a judgment notwithstanding the pendency of an appeal. ORCP 71 provides, in part:
“A Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice to all parties who have appeared, if any, as the court orders. During the pendency of an appeal, a judgment may be corrected as provided in subsection (2) of section B of this rule.
“B Mistakes; inadvertence; excusable neglect; newly discovered evidence, etc.
“B(l) By motion. On motion and upon such terms as are just, the court may relieve a party or such party’s legal representative from a judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect ***.
“B(2) When appeal pending. A motion under sections A or B may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court’s order in the appellate court within seven days of the date of the trial court order.
*131 Any necessary modification of the appeal required by the court order shall be pursuant to rule of the appellate court.
“C Relief from judgment by other means. This rule does not limit the inherent power of a court to modify a judgment within a reasonable time, or the power of a court to entertain an independent action to relieve a party from a judgment, or the power of a court to grant relief to a defendant under Rule 7 D(6)(f), or the power of a court to set aside a judgment for fraud upon the court.”
(Boldface in original; emphases added.)
In sum, once a notice of appeal is filed, the trial court’s jurisdiction to set aside or “correct” a general judgment is extremely limited. In particular, only ORCP 71 B — and ORCP 71 A, by derivative reference to ORCP 71 B— confer such authority and, concomitantly, jurisdiction. Critically, unlike ORCP 71A and ORCP 71 B(2), ORCP 71 C includes no reference to “correction” or modification of a judgment during the pendency of an appeal. We must conclude that that difference is not a matter of legislative inadvertence, but rather one of design. See ORS 174.010 (instructing that, in construing a statute, the court is “not to insert what has been omitted, or to omit what has been inserted”); see also PGE v. Bureau of Labor and Industries, 317 Or 606, 614, 859 P2d 1143 (1993) (“The legislature knows how to include qualifying language in a statute when it wants to do so.”).
Because “correction” of a judgment pursuant to ORCP 71 C during the pendency of an appeal is not encompassed within a trial court’s retained jurisdiction under ORCP 19.270, the trial court lacked jurisdiction to enter the third corrected general judgment pursuant to ORCP 71 C. Accordingly, we vacate the third corrected general judgment, which names Roller as a judgment debtor on the wrongful discharge counterclaim.
Nevertheless, the original judgment remains— and, with it, Schmaing’s cross-appeal from that judgment, assigning error to the trial court’s failure to name Roller in
We reject out of hand Roller’s invocation of “invited error.” As Schmaing emphasizes, her pleadings explicitly identified Roller, individually, as a counterclaim defendant, and her counsel never disputed Roller’s statements to the court that he, individually, was a counterclaim defendant.
With respect to the merits of the trial court’s omission of Roller as a judgment debtor, that failure was predicated on what the court later acknowledged was an erroneous understanding that Roller was not properly joined as a party to the action — when, in fact, Roller was indisputably a party to the action below, both as plaintiff and counterclaim defendant. Indeed, Roller repeatedly acknowledged that fact at trial. See 254 Or App at 121, 122 (“I’m Daniel Roller being sued by them.” *** “I am being sued as an individual.”). Consequently, the trial court erred in failing to name Roller as a judgment debtor in the original judgment.
Nevertheless, whether that error was harmless depends on the disposition of both defendants’ contention that the court erred in denying the motion for directed verdict against the wrongful discharge claim. Further, even if the motion for directed verdict was properly denied, if Roller is correct that the trial court committed reversible error in precluding him from representing himself, he would be entitled to a new trial with respect to the counterclaim against him individually. Accordingly, we proceed to each of those matters in turn.
B. Denial of the directed verdict: “Important public duty ”?
Roller and Pet Clinic assert that “[t]he trial court erred by failing to grant a directed verdict against [Schmaing’s] wrongful discharge [counter] claim because Schmaing’s actions did not involve fulfilling any important public duty.”
Absent a contrary agreement, an employer may discharge an employee “at any time for any reason.” Patton
“(1) [W]hen the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597,588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10, 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975) (employee discharged for serving on jury).”
Babick v. Oregon Arena Corp., 333 Or 401, 407, 40 P3d 1059 (2002).
In determining whether an employee was discharged for fulfilling an important public duty, we must “find a public duty, not create one, using constitutional and statutory provisions and case law.” Id. at 407-08 (internal quotation marks omitted; emphasis in original). The legal source of the purported public duty must either “(1) specifically encourage or require a particular action or (2) otherwise demonstrate that such action enjoys high social value.” Love v. Polk County Fire District, 209 Or App 474, 486, 149 P3d 199 (2006) (internal quotation marks and brackets omitted).
We have previously recognized that, when an employee reports, or prepares to report, his or her employer to the proper authorities for purported violations, the employee fulfills an important public duty by such “whistleblowing.” For example, in McQuary v. Bel Air Convalescent Home, Inc., 69 Or App 107, 109-11, 684 P2d 21, rev den, 298 Or 37 (1984), we concluded that the plaintiff had a legally sufficient “potential wrongful discharge claim” where she had been discharged after she had threatened to report to the Health Division what she believed to be an instance of staff abuse of a patient in the defendant’s nursing home. In finding an important public duty, we explained that “[t]he Health Division is charged with protecting patients’ rights”
More recently, in Love, the plaintiff appealed the trial court’s grant of summary judgment against her wrongful discharge claim. 209 Or App 474. We reversed and remanded, holding that the plaintiff employee had raised a genuine issue of material fact as to whether the plaintiff was discharged for whistleblowing about the defendant fire district’s alleged cover-up during a federal investigation following a fatal accident. Id. at 496. In that context, we explained that “exposing certain statutory or regulatory violations, including health and safety violations, is sufficiently ‘important’ that, under certain conditions, an employee who does so is protected from being discharged for that conduct.” Id. at 487.
Conversely, where the law does not specifically encourage reporting, or demonstrate its high social value, no important public duty to report exists. For example, in Handam v. Wilsonville Holiday Partners, LLC, the plaintiff hotel employee was discharged after reporting to his supervisor that he believed that certain hotel employees had violated Oregon Liquor Control Commission (OLCC) rules by drinking on shift and that the same coworkers might also have been in violation of immigration laws. 225 Or App 442, 201 P3d 920 (2009), vac’d and rent’d, 347 Or 533, 225 P3d 43, adh’d to on remand, 235 Or App 688, 234 P3d 133, rev den, 349 Or 171 (2010). We determined that the plaintiff’s actions did not fulfill an important public duty because the OLCC statutes “say nothing about reporting OLCC violations by coworkers,” much less encourage such reporting. 225 Or App at 451. We then distinguished the “whistleblower” line of wrongful discharge cases, including
The Supreme Court applied a similar analysis, and came to a similar result, in a subsequent case, Lamson v. Crater Lake Motors, Inc., 346 Or 628, 630, 216 P3d 852 (2009).
After the jury returned a verdict in the plaintiff’s favor, the trial court entered a judgment, and the employer appealed. The Supreme Court ultimately reversed, rejecting the plaintiff’s whistleblowing contention. In so holding, the Court emphasized that (a) the plaintiff “did not report to [the] defendant’s management *** that [the] defendant corporation was itself engaged in such practices,” and (b) the plaintiff “did not report the unlawful trade practices of [the outside firm] to any entity with authority to take action” to enforce trade practice laws and regulations. Id. at 640 (emphasis added). Thus, unlike the plaintiff in Love, the
We apply those principles to this case. Schmaing contends that she was discharged for fulfilling two different important public duties: (1) refusing to defame Miller by refusing to the sign the false declaration and (2) preparing to report to the veterinary board her good-faith belief that Roller had violated veterinary professional standards. Roller and Pet Clinic dispute that Schmaing’s conduct in either respect fulfilled an important public duty — but acknowledge that, to prevail on appeal, they must demonstrate that neither did so. Thus, if we agree with Schmaing as to the latter, we need not address the former.
Roller and Pet Clinic concede that reporting animal abuse is an important public duty; however, they argue that that duty is restricted to veterinary professionals, because the statutes that require such reporting expressly apply exclusively to veterinarians and veterinary technicians. See ORS 686.445; ORS 686.555.
For her part, while recognizing that reporting animal abuse is an important public duty, Schmaing relies primarily on a different important public duty — viz., reporting
“A person who reports or supplies information in good faith to a health professional regulatory board or to a committee reporting to a health professional regulatory board shall be immune from an action for civil damages as a result thereof.”
(Emphasis added.) See also ORS 676.160(19) (defining “health professional regulatory board” to include the Oregon State Veterinary Medical Examining Board).
As Schmaing points out, civil immunity under ORS 676.170 broadly applies to any person who makes a good faith report to a health professional regulatory board. Cf. Love, 209 Or App at 491-92 (observing that the public employee whistleblowing statute, ORS 659A.203(b), protects only public employees whose disclosures are based on reasonable belief of misconduct). That broad statutory grant of immunity demonstrates that the legislature specifically intended to encourage good-faith public reporting of healthcare professional misconduct to the appropriate regulatory board, in this case the veterinary board. See Love, 209 Or App at 492 (“[T]he ‘important public duty’ doctrine is innately intertwined with the legislative expression of policy choices in statutes.”); see also Huber, 235 Or App at 242-43 (“In the absence of a mandatory reporting requirement, an employee can demonstrate that an important public duty exists by citing statutes or other authority indicating legislative policies to promote the reporting of violations and prevent employers from retaliating against employees who report such violations.”).
We conclude that directly applicable statutes unambiguously manifest a “legislative *** policy choice” of promoting, and protecting, good-faith public reporting of
C. Roller’s asserted right of self-representation
Roller contends that, if we sustain Schmaing’s cross-appeal, then we must also reverse the judgment and remand for a new trial on the wrongful discharge counterclaim as to Roller individually, because “[i]t would be utterly inconsistent to deny Dr. Roller his right to self-representation but also make him a judgment debtor.”
We pause to slice the Gordian knot of one final procedural complication.
Our preceding disposition of the parties’ arguments regarding whether and how Roller is properly a judgment debtor on the counterclaim judgment in Schmaing’s favor places this issue in an unusual posture. The only judgment from which Roller has appealed and raised assignments of error (including the assignment pertaining to preclusion of self-representation) is the third corrected general judgment — which we have vacated. Roller, quite reasonably, did not appeal from the original judgment, because he was not named as a judgment debtor in that judgment — though, as we have now concluded, he should have been so named.
Whenever possible, application of procedural rules should not thwart the practical and prudential purposes underlying those rules. Form should not trump function. Here, there is no question that the parties have a concrete and continuing dispute as to whether Roller individually is entitled to a new trial on the wrongful discharge counterclaim. Further, to defer determination of that dispute — which, certainly would be revived by way of yet another appeal following entry of judgment on remand— would pointlessly prolong already protracted litigation.
The best, pragmatic approach is to treat Roller’s “preclusion of self-representation” assignment of error raised in the context of his appeal from the third corrected general judgment as functionally a cross-assignment of error proffered in response to Schmaing’s cross-appeal from the original judgment. That characterization is appropriate in that Roller’s assignment of error embodies a contention that, if Schmaing is correct (as she is) that Roller is a judgment debtor on the counterclaim, the proper appellate disposition is not to remand with instructions to enter a judgment naming Roller as a judgment debtor but, instead, to remand for a new trial as to Roller individually on the wrongful discharge counterclaim. See ORAP 5.57(2)(b) (“A cross-assignment of error is appropriate *** [i]f the relief sought by the appellant were to be granted, respondent would desire reversal or modification of an intermediate ruling of the trial court.”). We so proceed.
Roller, referring to his colloquy with the trial court on both August 17 and August 29, 2006, see 254 Or App at 121-23, contends that the court erroneously precluded him from representing himself. Roller’s argument in that regard
“Any action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney, except that the state or a corporation appears by attorney in all cases, unless otherwise specifically provided by law. Where a party appears by attorney, the written proceedings must be in the name of the attorney, who is the sole representative of the client of the attorney as between the client and the adverse party, except as provided in ORS 9.310.”
Beyond that, Roller acknowledges that, because he continued, in fact, to be represented by counsel throughout the trial, he cannot demonstrate actual, discrete prejudice from the court’s action. He does not, for example, identify any manner in which his pro se defense of the wrongful discharge counterclaim would have differed — e.g., any evidence he would have proffered, any line of examination or cross- examination he would have pursued, any theory of defense he would have developed, or any argument he would have presented — from that presented by Ms. Roller on behalf of both Roller and Pet Clinic. Nor does he point to any differentiation between his interests and those of Pet Clinic with respect to that defense. Rather, he posits that requiring a showing of identifiable prejudice “would not make sense” because it would “effectively eviscerate” the right of self-representation.
Schmaing contends that Roller’s argument regarding the court’s denial of his first, August 17, request to represent himself is not preserved because, on that occasion, the trial court offered Roller “the opportunity to file a brief in aid of further consideration of the issue,” to which Roller responded that he would file a brief by the next day — but never did and, indeed, did not pursue the matter further until August 29. See 254 Or App at 121-23. Schmaing contends that the trial court could reasonably have understood Roller’s conduct (or inaction) in that regard to evince an abandonment of his initial request and, thus, a waiver of “any claim of error” based on the August 17 colloquy. Be that as it may, it is apparent — as Schmaing
On the merits, Schmaing does not dispute that ORS 9.320 confers at least an abstract entitlement to self-representation. However, Schmaing contends that that entitlement is not absolute and is qualified by practical and prudential considerations, including the timing of the party’s request to proceed pro se and potential disruption of the judicial process. In that regard, Schmaing asserts that the trial court’s ruling “was based on appropriate considerations and was entirely correct,” because “Roller’s request was too little and too late,” and “the trial court was well within its discretion to prevent the kind of disruption that would flow from Roller’s late demand” to represent himself. In any event, Schmaing argues, ORS 19.415(2) requires a showing that the alleged error was prejudicial.
We conclude that, in the August 29 colloquy, the trial court did erroneously preclude Roller from representing himself. The sole justification the court expressed at that time was that Roller personally was not a party to the litigation (specifically, with respect to the counterclaims) — a rationale that was incorrect. Further, to the extent that the trial court subsequently — indeed, nearly two years later, in the context of its order allowing ORCP 71 C relief— proffered additional reasons for its ruling, e.g., potential
But not all error is reversible error. Rather, ORS 19.415(2) provides that “[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party.” See Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 174, 61 P3d 928 (2003) (“In every case, the appellate courts must adhere to the limitation of ORS 19.415(2) and reverse or modify a judgment only if it can be determined from the record that the error ‘substantially affect [ed] the rights of a party.’ ”); see also id. at 173-74 (explaining that ORS 19.415(2) “places the burden to make a record that demonstrates prejudicial error on whichever party loses in the trial court and then seeks reversal or modification of the judgment on appeal”).
We agree with Roller that the statutory right of self-representation is an important right. But we cannot (at least in civil litigation) endorse his proposition that, “[a] party who is erroneously forced to use a retained attorney should not then have to show prejudice in order to obtain a reversal of the resulting judgment.”
It is tempting, to be sure, to embrace that proposition. But however attractive, and however phrased, it reduces to structural error, a construct that is inapposite under Oregon law. See Ryan v. Palmateer, 338 Or 278, 295, 108 P3d 1127, cert den, 546 US 874 (2005) (“[Structural error is a doctrine that originated in federal criminal cases and * * * has not been adopted by this court as an aspect of Oregon law[.]”); State v. Arreola, 250 Or App 496, 501, 281 P3d 634 (2012) (“Oregon courts do not recognize structural error, so the erroneous admission of a medical diagnosis does not necessarily require reversal in every case.”); State v. Wilson, 216 Or App 226, 232, 173 P3d 150 (2007), rev den, 344 Or 391 (2008), adh’d to as modified on recons, 228 Or App 365, 208 P3d 523 (2009) (“[T]he Oregon Supreme Court has repeatedly admonished that the concept of ‘structural error’ is inapposite to Oregon law.”); see also Hayward v. Belleque, 248 Or App 141, 165, 273 P3d 926 (2012) (“The court will not presume prejudice in the absence of proof.”).
Because Roller failed to establish cognizable prejudice resulting from the trial court’s ruling, that ruling does
III. CONCLUSION
The trial court lacked jurisdiction under ORCP 71 C to enter the third corrected general judgment during the pendency of the appeal from the original judgment. The trial court erred in failing to designate Koller as a judgment debtor on the wrongful discharge counterclaim in the original judgment. The trial court correctly denied the motion for a directed verdict against Schmaing’s wrongful discharge counterclaim. The trial court’s denial of Roller's request to proceed pro se was not reversible error.
In A139232, affirmed. In A136633, on appeal of third corrected general judgment, vacated; on appeal and cross-appeal of original general judgment, affirmed on appeal and remanded on cross-appeal with instructions to designate Koller as an additional judgment debtor on the wrongful discharge counterclaim.
Pet Clinic was dissolved in 2005, and, at that point, Koller continued to operate the clinic as a sole proprietorship. For reasons that will become apparent, it is important that we distinguish between Koller as a sole proprietor and Pet Clinic.
On June 6, 2007, the trial court entered a general judgment and money award, and we will refer to that judgment throughout this opinion as the “original general judgment.” The trial court subsequently entered a “Corrected General Judgment” and a “Second Corrected General Judgment,” which have been vacated and are not at issue on this appeal. On September 11,2008, the trial court entered a “Corrected* General Judgment,” which we will refer to as the “third corrected general judgment” throughout this opinion.
Koller and Pet Clinic have jointly raised other matters as assignments of error, which we have considered and reject without further discussion.
Koller filed an additional appeal from an order of garnishment, A139232, which has been consolidated with the principal appeal, A136633. In briefing and argument, Koller has raised no contentions pertaining to that matter. Thus, we deem his appeal in A139232 to have been abandoned and, accordingly, affirm.
The description of historical facts in the following summary is stated consistently with our review of the trial court’s denial of the directed verdict motion against the wrongful discharge counterclaim. See Schoen v. Freightliner LLC, 224 Or App 613, 621-22, 199 P3d 332 (2008) (“In reviewing the denial of a motion for directed verdict, we review the record to determine whether there
The veterinary board ultimately determined that the evidence was insufficient to support a finding that Koller had treated animals inhumanely.
In addition to being a veterinarian, Koller was an attorney licensed in California.
Koller does not assign error to the trial court excluding him from the courtroom.
The jury rejected Koller’s claim for fraudulent misrepresentation and also rejected Schmaing’s counterclaim for intentional infliction of emotional distress.
The trial court later candidly, and correctly, acknowledged that that basis was incorrect, because Schmaing had, in fact, served Roller individually. See 254 Or App at 126.
Roller — presumably because he was not named as a judgment debtor — did not appeal from that judgment.
ORCP 71A is quoted below. See 254 Or App at 130.
ORCP 71 C is quoted below. See 254 Or App at 131.
Although it allowed relief under ORCP 71 C, the trial court concluded that ORCP 71 B(l) was inapposite for the following three reasons:
“(1) Schmaing is not seeking ‘relief from judgment’ instead she is asking the court to correct or modify the judgment under ORCP 71A or 71C; (2) ORCP 71B(l)(a) pertains to mistakes made by a party, not by the court; and (3) ORCP 71B(1) requires that a motion brought under reason (a) is to be accompanied by a pleading or Rule 21A motions and Schmaing did not include either with her motion.”
In that regard, Schmaing contends that the court properly entered that judgment pursuant to ORCP 71 C or, failing that, (by way of her cross-assignment of error) should have entered that judgment pursuant to ORCP 71B.
As noted, 254 Or App at 118 n 3, we reject Pet Clinic’s and Koller’s other assignments of error without further discussion.
Roller correctly asserts that Schmaing’s counterclaim against him was deemed dismissed with prejudice upon entry of the original general judgment by operation of ORS 18.082(3), which provides:
“Upon entry of a general judgment, any request for relief in the action that is not decided by the general judgment or by a previous limited judgment, that has not been incorporated into the general judgment under subsection (2) of this section, or that cannot be decided by a supplemental judgment, is dismissed with prejudice unless the judgment provides that the dismissal is without prejudice.”
ORS 19.270(5)(a) is inapplicable here because, contrary to Schmaing’s assertion, the “corrected general judgment” in this case is not “an order or supplemental judgment” — it is a new and substantively different general judgment. See ORS 18.005(7), (17) (defining, respectively, “general judgment” and “supplemental judgment”).
Schmaing identifies no Oregon authority, including authority antedating the enactment of ORCP 71, recognizing and sustaining a trial court’s “inherent authority” to substantively alter a judgment that is the object of a pending appeal.
The Supreme Court vacated and remanded our decision in Handam for reconsideration in light of its decision in Lamson. On remand, we adhered to our original opinion, observing that “Lamson makes it clear that we applied the correct legal test in our original opinion.” Handam, 235 Or App at 690.
ORS 686.445(1) provides:
“Except as provided in ORS 686.455, licensed veterinarians and veterinary technicians may report to peace officers, animal control officers or officers of private organizations devoted to humane treatment of animals any animal that the veterinarian or veterinary technician knows or reasonably believes to be abandoned, neglected or abused. Any veterinarian or veterinary technician making a report under this section is immune from any civil or criminal liability by reason of making the report.”
(Emphasis added.) ORS 686.455 mandates aggravated animal abuse reporting for veterinarians.
Given, that conclusion, we express no opinion as to Schmaing’s alternative contention pertaining to her refusal to engage in “defamation.”
The parties do not cite, nor have we discovered, any Oregon appellate case that addresses the denial of the statutory right of self-representation for a civil litigant under ORS 9.320. To be sure, there is an abundance of authority in the criminal realm, including, most prominently, the “Meyrick” genre of cases, predicated on State v. Meyrick, 313 Or 125, 831 P2d 666 (1992), pertaining to advising criminal defendants regarding waiver of the constitutional right of representation by counsel in criminal proceedings. Only one of those cases, State v. Davis, 110 Or App 358, 822 P2d 736 (1991) — which was predicated, in part, on our decision in Meyrick, 106 Or App 682, 809 P2d 710 (1991), rev’d on other grounds, 313 Or 125, 831 P2d 666 (1992) — appears to address a denial of a represented criminal defendant’s request (failing the appointment of substituted counsel) to represent himself. In Davis, we observed that “[a] criminal defendant has a constitutional right to waive counsel and to represent himself[,]” but noted that “that right is not absolute” and could be qualified by, inter alia, concerns about disruption of the judicial process. 110 Or App at 360. We concluded that the trial court’s denial of the defendant’s request constituted reversible error. Id. at 361; see also State v. Verna, 9 Or App 620, 624, 498 P2d 793 (1972) (“A defendant in a criminal case has the constitutional right not only to be represented by counsel, but also, if he so , to represent himself.”).